Antony Opiyo Abuya v Mohamed Ibrahim Guled [2021] KEBPRT 466 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 889 OF 2020 (NAIROBI)

ANTONY OPIYO ABUYA T/A PALMERS PACIFIC LIMITED………APPLICANT/TENANT

VERSUS

MOHAMED IBRAHIM GULED…...…………................................RESPONDENT/LANDLORD

RULING

1. The Applicant/Tenant filed an application before this Tribunal dated 9th December, 2020 seeking to restrain the Landlord/Respondent from harassing them and the said application is based on the grounds that the Respondent/Landlord locked the Applicant’s/Tenant’s business premises by welding the doors and posting a notice on the door that they had closed the business.

2. The Respondent/Landlord raised a Preliminary Objection dated 5th January, 2021. The Respondent/Landlord’s grounds of objection are that the Applicant/Tenant does not have the capacity to sue as Palmers Pacific Limited (hereinafter referred to as “the Company”) claiming that the company has the power to sue in its own name. That the Applicant/Tenant is not the Tenant nor the proprietor of the Company and they have no authorization to sue on behalf of the Company.

PARTIES’ SUBMISSIONS

3. I have reviewed the pleadings and the parties’ submissions. A summary of the Landlord’s /Respondent’s submissions is that the Applicant/Tenant is not the proper party to make the application before the Tribunal as they purportedly do not have the authorization to sue on behalf of the Company. That the payment of rent to the Landlord/Respondent was made in the name of the Company and that the Applicant only stated that they are the Manager of the Company.

4. The upshot of the Applicant’s/Tenant’s submissions is that that the Landlord’s/Respondent’s Preliminary Objection does not raise clear points of law. They submit that the four grounds raised by the Landlord/Respondent are issues of fact and that they are made in an attempt to evade the determination of the case based on merit. They further submitted that the Tribunal should proceed to dismiss the Preliminary Objection raised urging the Tribunal to administer justice without undue regard to procedural technicalities in accordance with Article 159 (d) of the Constitution of Kenya. The Applicant/Tenant placed reliance on the cases of Mukisa Biscuit Manufacturer Ltd v Westend Distributers Ltd (1969) E A 696;andIndependent Electoral & Boundaries Commission v Jane Cheperenger & 2 others (2015) eKLR.

ANALYSIS & DETERMINATION

5. I will begin by setting out on the onset what a preliminary objection is and I will do so by referring to the jurisprudence in the locus classicus case of Mukisa Biscuit Manufacturer Ltd v Westend Distributers Ltd (1969) E A 696 as per law JA, it was stated that:

"...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.

Sir Charles Newbold P in that case stated: -

"...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

6. In principle, a preliminary objection is based on a “pure point of law” and must not be subject to contestation that will require evidence to be adduced. In order to make a determination on a preliminary objection, there must be clarity on the onset that there is no contestation with regard to the facts of a case.

7. The objection raised by the Respondent/Landlord is one that raises a question of law which is whether the Tenant/Applicant has locus standi to file the application. Simply put, locus standi is the right to appear and be heard before any Court and in this case before the Tribunal. Therefore, without locus standi, a party cannot be heard and that point alone may lead to the disposal of a case. I find that the preliminary objection raises an issue of law as without locus, the Tribunal has no jurisdiction to determine the matter.

8. The Respondent/ Landlord’s contention is that there exists no written authorization stating that the Applicant he has powers to act on behalf of the Company. That as such the Application is defective and should be struck out. Indeed, there has been a requirement for the written authority to be presented by a person who is acting on behalf of a Company. However, the Court in the case of Bethany Vineyards Limited & Another v Equity Bank Limited & 2 Others [2020] eKLR stated as follows:

“It does become apparent that there is no requirement for a company to present a resolution of a company indicating that a company has authorized the filing of a suit or has authorized the swearing of an affidavit on its behalf nor, for that matter, confirming it has authorized an advocate to represent it. It suffices for the deponent to state that he has authority to do such act.”

9. In the present case, the Tenant/Applicant in the Supporting Affidavit sworn by one Mr. Antony Opiyo Abuya and dated 10th December, 2020 stated as follows:

“1. THAT I am the manager of PALMERS PACIFIC LTD hereinafter referred to as the Company well conversant with all the issues herein and I have authority to make this Affidavit.” (Own emphasis)

10. The Applicant/Tenant has instituted their application as Antony Opiyo Abuya “trading as” Palmers Pacific Limited which can be taken to mean that it is an entity registered under the Business Names Registration Act Cap 499, Laws of Kenya. Therefore, it is possible that the Applicant is a shareholder of the business a fact that would necessitate the production of evidence before this Tribunal and thus would defeat the purpose of a Preliminary objection which is based on pure points of law.

11. It is because of the above that I hereby find and hold that the Preliminary Objection dated 5th January, 2021 be and is hereby dismissed.

Dated, signed and delivered electronically by consent of parties this 16th day of April, 2021

ANDREW MUMA

VICE-CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL